128 Ga. 35 | Ga. | 1907
(After stating the facts.) When a claim is paid by a person against whom it is asserted, through ignorance of law,, or where all of the facts are known and there is no misplaced confidence, nor artifice, deception, or fraudulent practice used to bring-about the payment, it is deemed voluntary, and can not be recovered back, unless made under an urgent and immediate necessity therefor. Civil Code, §3723. Under the stipulations in the record, only one question is to be determined in this case, and that is,, whether the judge erred in holding that the case was not in the-rule above referred to. For the purposes of this decision it is to. be conceded that an overcharge in freight had been collected by the railroad compány, and the question is whether, at the time of the payment, all of the facts were known so as to defeat a recovery.. At the time the payment was made by Elledge & Norman they did. not know of the agreement for the reduced rate of freight, nor did the plaintiffs know that the railroad company had violated the agreement. Under the agreement between plaintiffs and Elledge & Norman, the freight was to be paid by the latter and the amount credited upon the purchase-price of the stone, and not until long after the freight was paid, when bills were rendered to the plaintiffs, did they have knowledge that the rate of freight collected was not that which had been agreed upon. Whether Elledge & Norman be styled agents of the plaintiffs in reference to the freight, or not, it. is manifest, from the evidence, that they were authorized by the plaintiffs to pay the freight on the granite shipped to them. If the railroad company made an agreement with the plaintiffs for a reduced rate of freight (and for the purposes of this case such an agreement must be treated as having been made, there being no question before us now as .to the legality of this transaction) the plaintiffs had a right to assume that the defendant would comply with its agreement. While it might have been well for the plaintiffs to have notified Elledge & Norman in reference to the special agreement about the rate, it does not lie in the mouth of the defendant to say that notice should have been given for the reason that it might see fit to violate its agreement. Elledge & Norman knew nothing in reference to the reduced rate. In order to bring this case within the rule which counsel for the defendant contends is applicable, it would be necessary to assume that the plaintiffs knew that the agreement as to the rate had been violated; such knowledge
Judgment ajfinned.
